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Tuesday, January 29, 2013

Bottomside Briefs in American Express Arbitration Case, Including Briefs of the U.S. Solicitor General and 22 States

by Deepak Gupta

Since at least 2009, this blog has covered (e.g. here and here) the long-running saga of American Express v. Italian Colors, an antitrust dispute that raises fundamental questions about the limits of federal arbitration jurisprudence. The case, now before the Supreme Court, presents the question whether an arbitration clause should be
enforced when there is no dispute that a litigant has shown that it
would be unable effectively to vindicate its federal statutory rights in
the arbitral forum. (Along with Paul Clement of Bancroft PLLC, I represent the respondents before the Court.)

Last week, we filed our merits brief. Today, amicus briefs supporting the respondents were filed by 22 States, national business groups (including separate briefs from the National Retail Federation and National Grocers Association), professional arbitrators, leading scholars (of antitrust, arbitration, and civil procedure), and public interest groups (including both Public Citizen and Public Justice). Notably, the stack of briefs supporting the respondents includes an amicus brief from the Solicitor General of the United States. The Solicitor General's submissions receive special attention from the Justices, and so the filing of an SG amicus brief is always noteworthy. But today's brief is even more significant because the SG has generally stayed out of recent arbitration cases, but made a judgment that this case was different. I'll collect all of the bottomside briefs as they come in and post them here, so interested readers can find them in one place.